TMI Blog2014 (6) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... of capital gain in assessment year 2006-07 & 2007-08, the AO has assessed the capital gain in assessment year 2006-07 and also on protective basis in the assessment year 2007-08 and AO also observed that the issue is debatable and the AO himself was not sure as to whether the capital gain is to be assessed in assessment year 2006-07 & 2007-08. In view of these facts, the CIT(A) recorded a finding to the effect that the assessee has not concealed the amount of capital gain which is declared in the AY 2007-08 in view of the fact that possession was received in financial year 2006-07 only. Since the AO has taken the view that transfer of assets was in the AY 2006-07, capital gains was also assessed in the AY 2006-07. Since there was no concealment of particulars in the return but the issue was debatable and two opinions were possible as admitted by the AO, the CIT(A) has deleted the penalty. Hence, we do not find any infirmity in the order of CIT(A) for deleting the penalty insofar as issue was debatable as per the observation of the AO himself and since the possession was received in the financial year 2006-07, capital gain was offered in the assessment year 2007-08. - ITA No.1733,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 498 (Guj.). The basis of all these decisions is that there is no restriction placed by law on the issuance of a common authorization, which is of course to be based on reason/s to believe, on the strength of materials and information with regard to the concealed income or assets of persons in respect of whom search action is initiated. As explained, the search is of a premises, etc., so that the warrant of authorization is issued qua a premises, i.e., a different warrant would stand to be issued for each different place which is to be subject to search, of course in respect of the persons whose income/assets are suspected to be secreted or held at the said place. Further, as the said person/s may not be available at the said premises at the time of search, the obligation on the search party to produce and show the search warrant is to the person who is at the time relevant time in charge of the said premises; the search in the case of Raghu Raj Pratap Singh (supra) being on a bank, which was believed to hold undisclosed deposits (in the form of FDRs) of the persons in respect of whom the search had been authorized. In other words, if the search at a place is likely to yield evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons. It would be a different matter if the materials with the Revenue are for the undisclosed income/assets of an AOP comprising them, but the subsequent assessment/s is framed in their individual names on the strength of evidence found with regard to their individual assets in search. The assessee has no such case, which, where so, could only be on the basis of the facts and not a bald statement/s. In fact, even in such a case, there is no bar in law for framing assessments in the names of different individuals or, even for that matter, whose names are not mentioned but qua whom material as to undisclosed income stands found, though the same would be u/s.153C and not section 153A. In the instant case, there is no iota of evidence, nor is it the assessee s case of it being so, of any joint economic or commercial activity by the four named persons, to suggest even remotely of income/assets of an AOP. In fact, by all available counts, the information, or at least one of the informations, leading to the search action, is the monies received from ANL under the Arbitration Award dated 26.11.2005; the same having not been disclosed in the returns for the respective years. The said incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that assessment made u/s.143 read with Section 153A on the basis of search under Section 132 is not a de novo assessment as power of review is not available under the Act. The assessee has also taken a legal ground to the effect that warrant of authorization issued for the search was in joint names of various individuals but separate order of assessment was passed for the assessee in whose name alone there was no search warrant thereby rendering the order of assessment as invalid. 3.2 We found that similar plea was taken by the assessee in case of Satish L. Babladi and the Tribunal vide order dated 19-3-2013 has decided the issue in para 4.2 4.3 of its order, which have already been reproduced above. Therefore, in view of the decision of the coordinate bench of the Tribunal in case of one of the group members of the assessee, we do not find any merit in the contention of the assessee for holding that the order of assessment was invalid on the plea that warrant of authorization issued for the search was in joint names of various individuals but separate order of assessment was passed for the assessee. 3.3 In the result, appeal of the assessee is dismissed. ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of, the property was received in the FY 2006-07. The appellant has also submitted that out of the total amount of ₹ 1,65,00,000/-, a sum of ₹ 82,50,000/- received in FY 2005-06 and ₹ 55,00,000/- was invested in bonds for claiming exemption u/s. 54EC since the possession was received in FY 2006-07, therefore, capital gain was shown in AY 2007-08. In the assessment order passed by the Assessing Officer for AY 2007-08, it is held as under: The Long Term Capital Gains amounting to ₹ 27,50,0001-,declared by the assessee in the Assessment year under consideration, is already brought to tax in the course of assessment for the A Y 2006-07. However, the same is not reduced from the income of the assessee for the year under consideration to protect the interest of revenue. Accordingly, the same is assessed to the income of the assessee in the year under consideration on protective basis. The case of the assessee is assessed accordingly. From these facts, it is clear that the appellant has declared the arbitration award of ₹ 1,65,00,000/- in the return filed in AY 2006-07 and AY 2007-08. However, the dispute is regarding the taxability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Due to dispute regarding taxability of capital gain in assessment year 2006-07 2007-08, the AO has assessed the capital gain in assessment year 2006-07 and also on protective basis in the assessment year 2007-08 and AO also observed that the issue is debatable and the AO himself was not sure as to whether the capital gain is to be assessed in assessment year 2006-07 2007-08. In view of these facts, the CIT(A) recorded a finding to the effect that the assessee has not concealed the amount of capital gain which is declared in the AY 2007-08 in view of the fact that possession was received in financial year 2006-07 only. Since the AO has taken the view that transfer of assets was in the AY 2006-07, capital gains was also assessed in the AY 2006-07. Since there was no concealment of particulars in the return but the issue was debatable and two opinions were possible as admitted by the AO, the CIT(A) has deleted the penalty. Hence, we do not find any infirmity in the order of CIT(A) for deleting the penalty insofar as issue was debatable as per the observation of the AO himself and since the possession was received in the financial year 2006-07, capital gain was offered in the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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